SIDDIQUE MASIH and 2 others vs THE STATE

ORDER

' MUHAMMAD TASNIM, J.---Applicants are booked in Crime No,185 of 2011, under section 354-A, P.P.C., Police Station Surjani Town, Karachi.

2. ' In the first place applicants applied for bail before the learned III Additional Sessions Judge, Karachi West, who dismissed the bail application on the sole ground that bail application of the accused persons has already been dismissed and all the grounds raised therein were discussed in detail in the first bail order passed in bail application in SC No,455 of 2011 which was dismissed vide order dated 15-6-2011.

3. According to the prosecution case that complainant is a Christian lady initially residing in Christian Colony, Sector 35-C, LERP, Surjani Town, Karachi has lodged F.I.R. No,185 of 2011 at Police Station Surjani Town under section 354/34, P.P.C., alleging therein that on 12-4-2011 at 1000 hours she went to Christian Colony, Sector 35-C, LERP where applicants/accused beaten her and torn her clothes. Accordingly the matter was reported as above.

4. Learned counsel for the applicants in support of this bail application has submitted that there is delay of 9-1/2 hours in lodging this F.I.R. And the same has not been explained by the prosecution.

He further submitted that the learned trial Court has dismissed the bail application of the applicants on the wrong premises. While elaborating his arguments he submits that first bail application was filed by the applicants when challan was not submitted. He pointed out that initially the applicants were charged under sections 354/34, P.P.C. But their bail application was rejected by the learned trial Court prior to submission of challan. He further submitted that after submission of challan the present applicants were charged under section 354-A, P.P.C. And in changed circumstances the subsequent bail application was filed, which was dismissed by the learned trial Court being impressed by the earlier order passed by it without considering the fact that the earlier bail application was decided prior to submission of challan whereas the subsequent bail application was filed after submission of the challan. Learned counsel has further submitted that the ingredients of section 354-A, P.P.C. Are not met in this case as the allegation in the F.I.R. Are "I came at Christian Colony, Sector 35-C LERP, where Humayon, Siddique and Nouman beaten and torn my clothes". Learned counsel submits that requirements of section 354-A, P.P.C.

Have been extensively dealt with by the honourable Supreme Court of Pakistan in the case of QADIR SHAH and others v THE STATE (2009 SCM R 913) and also placed reliance in the case of KARAM DAD and another v. THE STATE and another (PLD 2008 Lahore 308). Learned counsel says that since the ingredients of section 354-A, P.P.C. For which the present applicants have been charged are not fulfilled the applicants are entitled to bail. He further submits that even otherwise there is no evidence available with the prosecution which connects the present applicants with the commission of the offence under section 354-A, P.P.C.

5. The complainant is present in person, she in the first place submitted that her advocate is not in attendance and a week time may be granted, however she has been heard in person. Learned Assistant Prosecutor General has not supported the impugned order passed by the learned trial Court, however, he has half heartedly opposed the grant of bail.

6. I have heard the learned counsel for the parties and have gone through the record.

7. It will be seen from the reading of the F.I.R. That the allegations made in the F.I.R. Are that when complainant came to the Christian Colony, where Humayon, Siddique and Nouman, the applicants beaten and torn her cloths. There is no allegation in the F.I.R. That her clothes were striped and in that condition exposed her body to the public view. Since the ingredients of striping of clothes and exposing the body of a person to the public view is missing in the present case, in my tentative view provisions of section 354-A, P.P.C. Are not attracted in the circumstances of the case.

8. Provision of section 354-A, P.P.C. Have came up for consideration before the honourabie Supreme Court of Pakistan in the case of Qadir Shah (supra) wherein their lordships while examining the aforesaid provision have observed as under:-- "Now coming to the question as to whether section 354-A, P.P.C. Is attracted in the present case or not, it would be advantageous to reproduce 354-A, P.P.C. As under:-- 354-A Assault or use of criminal force to woman and stripping her of her clothes.---Whoever, assaults or uses criminal force to any woman and stips her of her clothes an, in that condition exposes her to the public view, shall be punished with death or with imprisonment for life, and shall also be liable to fine."

' The plain reading of above provision of law would reveal that to attract the said penal provisions, two conditions must be fulfilled, firstly there should be stripping of the clothes and secondly the victim in that condition be exposed to the public view. Both the conditions must co-exist to bring the case within the ambit of section 354-A, P.P.C., which fact is missing in the instant case, as the occurrence took place in the field, the clothes of the victim were just torn and not stripped of.

Similarly exposure of the victim to the public at large is also missing, as no one from general public was present at the scene of incident."

9. Section 354-A, P.P.C. Has also come up for consideration before the honourable Lahore High Court in which the learned Single Judge of Lahore High Court while dealing with criminal miscellaneous application has compare the provisions of sections 354 and 354-A, P.P.C. And has opined as under:- ' I also find that the allegations as contained in the F.I.R. Lodged at the behest of the respondent, prima facie, do not attract the provisions of section 354-A, P.P. C. The plain reading of the said provision of P.P.C. Would reveal that to attract the said penal proviso, two conditions must be fulfilled, firstly there should be stripping of the clothes and secondly the victim in that condition be exposed to the public view. To attract the provisions of this section both the said conditions must coexist. In this case, according to complainant himself the clothes of the victim were just torn and not stripped of. Secondly the second pre-requisite for the application of section 354-A, P.P. C.

Regarding exposure of the victim to the public at large, prima-facie, is also missing."

10. From the plain reading of the above provisions of law so also the contents of F.I.R. It can be safely concluded that ingredients of section 354-A, P.P.C. Are not met in this case neither the clothes of the lady were stripped nor she in that condition was exposed to the public view. It is settled legal position that at the bail stage deeper appreciation of the record cannot be gone into, but only tentative assessm ent is to be made just to find out as to whether applicant/accused is connected with the commission of offence charged or not. Keeping in view the above settled legal position, if record of this case is examined, it would be found that the accused persons have been charged for the offence under section 354-A, P.P.C. And from the tentative assessment as above it appears that section 354-A, P.P.C. Is not fulfilled and this case requires further enquiry in terms of subsection (2) of section 497, Cr.P.C. Accordingly, present applicants are admitted to bail on furnishing surety in the sum of Rs, 50,000 (Rupees Fifty Thousand) each and P.R bond in the like amount to the satisfaction of learned trial Court.

11. Needless to mention here that the above observations are tentative in nature and the Trial Court shall not be influenced by the same and decide the case on the basis of the evidence to be adduced by the parties strictly in accordance with law.